1. The authors are Adrien Mundyo Busyo, Thomas
Osthudi Wongodi and Rene Sibu Matubuka, citizens of the Democratic Republic
of the Congo, acting on their own behalf and on behalf of 68 judges who were
subjected to a dismissal measure. They claim to be the victims of a
violation by the Democratic Republic of the Congo of articles 9, 14, 19, 20
and 21 of the International Covenant on Civil and Political Rights. The
communication also appears to raise questions under article 25 (c) of the
Covenant.

THE FACTS AS SUBMITTED BY THE AUTHORS

2.1 Under Presidential Decree No. 144 of 6 November 1998, 315 judges and
public prosecutors, including the above-mentioned authors, were dismissed on
the following grounds:

"The President of the Republic;
Having regard to Constitutional Decree-Law No. 003 of 27 May 1997 on the
organization and exercise of power in the Democratic Republic of Congo, as
subsequently amended and completed;

Having regard to articles 37, 41 and 42 of Ordinance-Law No. 88-056 of 29
September 1988 on the status of judges;

Given that the reports by the various commissions which were set up by the
Ministry of Justice and covered the whole country show that the
above-mentioned judges are immoral, corrupt, deserters or recognized to be
incompetent, contrary to their obligations as judges and to the honour and
dignity of their functions;

Considering that the conduct in question has discredited the judiciary,
tarnished the image of the system of justice and hampered its functioning;

Having regard to urgency, necessity and appropriateness;

On the proposals of the Minister of Justice;

Hereby decrees:

Article 1:

The following individuals are dismissed from their functions as judges …".

2.2 Contesting the legality of these dismissals, the authors filed an
appeal, following notification and within the three-month period established
by law, with the President of the Republic to obtain the withdrawal of the
above-mentioned decree. Having received no response, in accordance with
Ordinance No. 82/017 of 31 March 1982 on procedure before the Supreme Court
of Justice, the 68 judges all referred their applications to the Supreme
Court during the period from April to December 1999. According to the
information provided by the authors, it appears, first of all, that the
Attorney-General of the Republic, who was required to give his views within
one month, deliberately failed to transmit the report [FN1] by the Public
Prosecutor's Office until 19 September 2000 in order to block the appeal.
Moreover the Supreme Court, by a ruling of 26 September 2001, decided that
Presidential Decree No. 144 was an act of Government inasmuch as it came
within the context of government policy aimed at raising moral standards in
the judiciary and improving the functioning of one of the three powers of
the State. The Supreme Court consequently decided that the actions taken by
the President of the Republic, as the political authority, to execute
national policy escaped the control of the administrative court and thus
declared inadmissible the applications by the authors.

-------------------------------------------------------------------------------------------------------------------------------
[FN1] 1. The authors transmitted a copy of the report by the Public
Prosecutor's Office. In the report, the Office of the Attorney-General of
the Republic requests the Supreme Court of Justice to declare, first and
foremost, that Presidential Decree No. 144 is an act of Government that is
outside its jurisdiction; and, secondly, that this decree is justified
because of exceptional circumstances. On the basis of accusations made by
both the population and foreigners living in the Democratic Republic of the
Congo against allegedly incompetent, irresponsible, immoral and corrupt
judges, as well as of the missions carried out by judges in this regard, the
Attorney-General of the Republic maintains that the Head of State issued
Presidential Decree No. 144 in response to a crisis situation characterized
by war, partial territorial occupation and the need to intervene as a matter
of urgency in order to combat impunity. He stressed that it was materially
impossible for the authorities to follow the ordinary disciplinary procedure
and that the urgency of the situation, the collapse of the judiciary and
action to combat impunity were incompatible with any decision to suspend the
punishment of the judges concerned.
-------------------------------------------------------------------------------------------------------------------------------

2.3 On 27 and 29 January 1999, the authors, who formed an organization
called the "Group of the 315 illegally dismissed judges", known as the
"G.315", submitted their application to the Minister for Human Rights,
without results.

2.4 The authors also refer to various coercive measures used by the
authorities to prevent them from pressing their claims. They mention two
warrants for the arrest of Judges Rene Sibu Matubuka and Ntumba Katshinga.
[FN2] They explain that, following a meeting on the decree in question which
was held between the G.315 and the Minister of Justice on 23 November 1998,
the Minister withdrew the two warrants. The authors add that, further to
their follow-up letter to the Minister of Justice concerning the lack of
action taken following their meeting on the decree, Judges Rene Sibu
Matubuka and Benoît Malu Malu were arrested and detained from 18 to 22
December 1998 in an illegal detention centre in the GLM (Groupe Litho Moboti)
building belonging to the Task Force for Presidential Security. They were
heard by persons who had neither been sworn in nor authorized by the
Attorney-General of the Republic, as required by law.

3.1 The authors claim, first of all, to be the victims of dismissal measures
that they regard as clearly illegal.

3.2 They maintain that Presidential Decree No. 144 is contrary to
Constitutional Decree-Law No. 003 of 27 May 1997 on the organization and
exercise of power in the Democratic Republic of the Congo and Ordinance-Law
No. 88-056 of 29 September 1988 on the status of judges.

3.3 According to the authors, while the above-mentioned legislation
stipulates that the President of the Republic can dismiss a civilian judge
only on the proposal of the Supreme Council of the Judiciary (CSM), [FN3]
the dismissals in question were decided on the proposal of the Minister of
Justice, who is a member of the executive and thus took the place of the
only body with jurisdiction in this regard, namely, the CSM. According to
the authors, the law does not confer discretionary power, despite the
circumstances described in Presidential Decree No. 144, i.e. urgency,
necessity and appropriateness, which cannot be grounds for dismissal.

-------------------------------------------------------------------------------------------------------------------------------
[FN3] The CSM acts as a disciplinary court to enforce a penalty, which may
either be disciplinary (dismissal) or criminal (imprisonment for more than
three months).
-------------------------------------------------------------------------------------------------------------------------------

3.4 The authors also claim that the authorities failed to fulfil their
obligation to respect the adversarial principle and its corollaries (which
include the presumption of innocence) at all times when dealing with
disciplinary matters. In fact, the authors received no warning or
notification from any authority, body or commission and were, incidentally,
never heard either by the inspecting magistrate or by the CSM, as required
by law.

3.5 The authors maintain that, in violation of the obligation to justify any
decision to dismiss a government official, Presidential Decree No. 144 cites
only vague, imprecise and impersonal grounds, namely, immorality, desertion
and recognized incompetence - and this, in their opinion, amounts in
Congolese law to a lack of grounds. With regard to the claims of immorality
and incompetence, the authors state that their personal files in the CSM
secretariat prove the contrary. As to the claim of desertion, the authors
assert that their departure from the places to which they were assigned was
the result of war-related insecurity and that their registration with the
CSM secretariat in Kinshasa, the city where they took refuge, attested to
their availability as judges. They say that the CSM secretariat accorded
them the treatment enjoyed by persons displaced by war.

3.6 The authors refer to the reports which were submitted to the Commission
on Human Rights by the Special Rapporteur on the situation of human rights
in the Democratic Republic of the Congo [FN4] and the Special Rapporteur on
the independence of judges and lawyers [FN5] and in which they express
concern about Presidential Decree No. 144 calling for the dismissal of the
315 judges and demonstrating that the judiciary is under the control of the
executive. They also mention a statement by the head of the Office of the
United Nations High Commissioner for Human Rights in the Democratic Republic
of the Congo calling for the reinstatement of the dismissed judges.
-------------------------------------------------------------------------------------------------------------------------------
[FN4] Document E/CN.4/1999/31 of 8 February 1999.

3.7 Secondly, the authors are of the view that the illegal arrest, detention
and interrogation of three members of their organization are abuses of power
(see paragraph 2.4).

3.8 Lastly, the authors consider that they have exhausted domestic remedies.
Recalling the failure of their appeals to the President of the Republic, the
Minister for Human Rights and the Minister of Justice, and the ruling of the
Supreme Court of Justice, of 26 September 2001, they emphasize that the
independence of the judges responsible for making the ruling was not
guaranteed inasmuch as the Senior President of the Supreme Court, the
Attorney-General of the Republic and other senior members of the judiciary
were appointed by the new regime in power, without regard for the law
stipulating that such appointments must be made on the proposal of the
Supreme Council of the Judiciary. They add that, when these members of the
judiciary were sworn in by the President of the Republic, the Senior
President of the Supreme Court disregarded his obligation of discretion and
made a statement on the lawfulness of the dismissal decree. Moreover, the
authors consider that the Supreme Court, in its ruling of 26 September 2001,
wrongly decided that their appeal was inadmissible and thus deprived them of
any remedy.

3.9 Despite the request and the reminders (notes verbales of 7 December
2000, 12 July 2001 and 15 May 2003) the Committee sent to the State party
asking for a reply to the authors' allegations, the Committee has received
no response.

THE COMMITTEE'S ADMISSIBILITY DECISION

4.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.

4.2 In accordance with article 5, paragraph 2 (a), of the Optional Protocol,
the Committee has ascertained that the same question is not being examined
under another procedure of international investigation or settlement.

4. 3 The Committee considers that the authors' complaint that the facts as
they described them constitute a violation of articles 19, 20 and 21 has not
been sufficiently substantiated for the purposes of admissibility. This part
of the communication is therefore inadmissible under article 2 of the
Optional Protocol.

4.4 The Committee considers that, in the absence of any information from the
State party, the complaint submitted in relation to Presidential Decree No.
144 calling for the dismissal of 315 judges, including the authors of this
communication, and to the arrest and detention of Judges Rene Sibu Matubuka
and Benoît Malu Malu may raise questions under article 9, article 14,
paragraph 1, and article 25 (c) of the Covenant which should be examined as
to the merits.

EXAMINATION OF THE MERITS

5.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
required under article 5, paragraph 1, of the Optional Protocol. It notes
that the State party has not, despite the reminders sent to it, provided any
replies on either the admissibility or the merits of the communication. The
Committee notes that, under article 4, paragraph 2, of the Optional
Protocol, a State party is under an obligation to cooperate by submitting to
it written explanations or statements clarifying the matter and the
measures, if any, that may have been taken to remedy the situation. As the
State party has failed to cooperate in that regard, the Committee had no
choice but to give the authors' allegations their full weight inasmuch as
they were adequately substantiated.

5.2 The Committee notes that the authors have made specific and detailed
allegations relating to their dismissal, which was not in conformity with
the established legal procedures and safeguards. The Committee notes in this
regard that the Minister of Justice, in his statement of June 1999 (see
paragraph 3.8), and the Attorney-General of the Republic, in the report by
the Public Prosecutor's Office of 19 September 2000 (see footnote 1),
recognize that the established procedures and safeguards for dismissal were
not respected. Furthermore, the Committee considers that the circumstances
referred to in Presidential Decree No. 144 could not be accepted by it in
this specific case as grounds justifying the fact that the dismissal
measures were in conformity with the law and, in particular, with article 4
of the Covenant. The Presidential Decree merely refers to specific
circumstances without, however, specifying the nature and extent of
derogations from the rights provided for in domestic legislation and in the
Covenant and without demonstrating that these derogations are strictly
required and how long they are to last. Moreover, the Committee notes that
the Democratic Republic of the Congo failed to inform the international
community that it had availed itself of the right of derogation, as
stipulated in article 4, paragraph 3, of the Covenant. In accordance with
its jurisprudence, [FN6] the Committee recalls, moreover, that the principle
of access to public service on general terms of equality implies that the
State has a duty to ensure that it does not discriminate against anyone.
This principle is all the more applicable to persons employed in the public
service and to those who have been dismissed. With regard to article 14,
paragraph 1, of the Covenant, the Committee notes the absence of any reply
from the State party and also notes, on the one hand, that the authors did
not benefit from the guarantees to which they were entitled in their
capacity as judges and by virtue of which they should have been brought
before the Supreme Council of the Judiciary in accordance with the law, and
on the other hand, that the President of the Supreme Court had publicly,
before the case had been heard, supported the dismissals that had taken
place (see paragraph 3.8) thus damaging the equitable hearing of the case.
Consequently, the Committee considers that those dismissals constitute an
attack on the independence of the judiciary protected by article 14,
paragraph 1, of the Covenant. The dismissal of the authors was ordered on
grounds that cannot be accepted by the Committee as a justification of the
failure to respect the established procedures and guarantees that all
citizens must be able to enjoy on general terms of equality. In the absence
of a reply from the State party, and inasmuch as the Supreme Court, by its
ruling of 26 September 2001, has deprived the authors of all remedies by
declaring their appeals inadmissible on the grounds that Presidential Decree
No. 144 constituted an act of Government, the Committee considers that, in
this specific case, the facts show that there has been a violation of
article 25, paragraph (c), read in conjunction with article 14, paragraph 1,
on the independence of the judiciary, and of article 2, paragraph 1, of the
Covenant.
-------------------------------------------------------------------------------------------------------------------------------
[FN6] Communication No. 422/1990 Adimayo M. Aduayom T. Diasso and Yawo S.
Dobou v. Togo; general comment No. 25 on article 25 (fiftieth session -
1996).
-------------------------------------------------------------------------------------------------------------------------------

5.3 Having regard to the complaint of a violation of article 9 of the
Covenant, the Committee notes that Judges Rene Sibu Matubuka and Benoît Malu
Malu were arbitrarily arrested and detained from 18 to 22 December 1998 in
an illegal detention centre belonging to the Task Force for Presidential
Security. In the absence of a reply from the State party, the Committee
notes that there has been an arbitrary violation of the right to liberty of
the person under article 9 of the Covenant.

6.1 The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the State party has committed a violation of
article 25 (c), article 14, paragraph 1, article 9 and article 2, paragraph
1, of the Covenant.

6.2 Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee
is of the view that the authors are entitled to an appropriate remedy, which
should include, inter alia: (a) in the absence of a properly established
disciplinary procedure against the authors, reinstatement in the public
service and in their posts, with all the consequences that that implies, or,
if necessary, in similar posts; [FN7] and (b) compensation calculated on the
basis of an amount equivalent to the salary they would have received during
the period of non-reinstatement. (8) The State party is also under an
obligation to ensure that similar violations do not occur in future and, in
particular, that a dismissal measure can be taken only in accordance with
the provisions of the Covenant.

6.3 The Committee recalls that, by becoming a State party to the Optional
Protocol, the Democratic Republic of the Congo recognized the competence of
the Committee to determine whether there has been a violation of the
Covenant or not and that, under article 2 of the Covenant, the State party
has undertaken to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognized in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established.
Consequently, the Committee wishes to receive from the State party, within
90 days of the transmission of these findings, information about the
measures taken to give effect to its views. The State party is also
requested to make these findings public.

[Adopted in English, French and Spanish, the French text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]